Convicted Sask. killer argues Gladue factors not considered

Having played a role in a fatal beating at a New Year’s party in 2013, a 30-year-old man is now hoping for a lighter sentence.

Tyson Burton Whitehead was one of three men who, in the early morning of Jan. 1, 2013, beat 20-year-old Duril Mckay to death on the Red Earth First Nation — an assault that continued even after the victim was unresponsive on the ground.

None of the three had prior criminal records. Whitehead’s cousins, brothers Lenny and Douglas Head, were also involved.

On Thursday, Whitehead was at the Saskatchewan Court of Appeal where his lawyer Bruce Campbell asked the province’s highest court to consider imposing a sentence below the nine years Whitehead received in June 2015 from Queen’s Bench Justice Lyle Zuk in Prince Albert.

Campbell argued Zuk placed too much emphasis on parity, which is the legal principle of similar offenders receiving similar sentences for similar offences. While all three accused were equally involved in the incident, Campbell said the judge didn’t consider a number of factors specific to his client he argued should have drawn a shorter sentence.

Chief among those, in Campbell’s view, are Gladue factors, which refer to systemic and background issues that affect indigenous offenders, such as the impact of colonization, residential schools and poverty.

While Whitehead downplayed the effects of his personal history during his sentencing, Campbell said Gladue factors in his client’s background — such as domestic abuse he witnessed — nonetheless played a role in his life and should have been considered.

Campbell argued Zuk, while referring to Gladue factors in his decision, did not take them into account them while imposing sentence — something Campbell said the judge was required to do.

Campbell also argued Zuk didn’t adequately consider the time Whitehead spent in the community prior to his matter being resolved. Campbell said his client’s sentence did not differ from those of his cousins, despite the fact Whitehead managed to do “incredibly well” on strict conditions.

Crown prosecutor Andrew Davis said the case comes down to whether the sentence imposed is demonstrably unfit which, he says, it isn’t.

Davis placed this case at the higher end of the range in terms of circumstances in a manslaughter case, with the presence of alcohol and the resulting inability to form intent essentially all that separates it from a murder.

Davis argued Zuk did consider Gladue factors and that he didn’t claim to feel bound by the nine-year sentences previously received by the other two offenders. He added the judge took into account the time Whitehead spent on release, though those details did not balance out against the fact a man had been killed.